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TMI Blog2022 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conduct of the complainant on several occasions and proceeded to dismiss the case and finally acquitted the accused persons rightly, complying with the provisions of Section 256 of the Code of Criminal Procedure - the order under appeal being in accordance with the provisions under Section 256 of the Code of Criminal Procedure, wherein the learned Magistrate has recorded specific reasons justifying dismissal of the case and also applied judicial discretion to the facts and circumstances of the case before proceeding to acquit the accused persons under Section 256(1) of the Code of Criminal Procedure by dismissing the case. Considering the conduct of the appellant/complainant before the Trial Court as also before this Court, (in a case of as old as 24 years), this Court is of the view that it seems that the appellant/complainant has lost interest in the appeal as also before the Trial Court and as such this Court finds no reason to interfere with the said order/judgment of acquittal under appeal - Appeal dismissed. - CRA 89 of 2002 - - - Dated:- 31-8-2022 - HON BLE JUSTICE SHAMPA DUTT (PAUL) For the Appellant : Ms. Rita Dutta. For the State : Ms. Pushpita Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the opposite party nos. 2 and 3 banker intimations. By a notice dated 01.07.1999, written by the appellant s advocate to the opposite nos. 2 and 3, the appellant duly made demand in writing for payment the said cheques amount of Rs.42,472.80 /- and Rs.8,000/- from the said opposite party nos. 2 and 3 nos. 1 and 2 within 15 days from the date of receipt of the said notice. The said notice was duly received by the opposite party nos. 2 and 3 on 03.07.1999. By a letter dated 12.07.1999 the opposite party nos. 2 and 3 had requested the Advocates for the appellant to allow seven days time to pay the said amount, but has failed and neglected to do so. Inspite of the receipt of the said notice the opposite party nos. 2 and 3 have failed and/or neglected to pay the said cheque amount of Rs.42,472.80/- and Rs.8,000/- or any part or portion thereof to your appellant. The accused parties pleaded not guilty under Section 251 Cr.P.C. and claimed for trial. The matter was fixed for evidence before the learned Magistrate on 30th April, 2001. On that date the complainant was absent by petition. On the next date fixed on 9th July, 2001 again the complainant was absent by petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice for expeditious disposal of this Appeal of the year 2002 connected with an incident of the year 1999 (long 24 years). Thus considering the conduct of the appellant before this Court and the Trial Court, and the order of the learned Magistrate being in accordance with law, as the learned Magistrate had applied judicial discretion and recorded his findings justifying dismissal of the case and rightly acquitted the accused persons under Section 256 of the Code of Criminal Procedure and that there being no irregularity in the order under appeal, the instant appeal is liable to be dismissed. Findings Section 256 of the Code of Criminal Procedure lays down as follows: Non appearance or death of the complainant (1) if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contend, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Provided that where the complainant is represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n showing cause of his absence on the previous dates. Absence of judicial discretion is apparent on the face of the record, because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other day and the Court thus set aside the impugned order of acquittal passed by the Magistrate. The facts and circumstances of the present case is not similar to the said case in which the findings as above has been recorded by the Court. In the present case the learned Magistrate had given opportunity on three occasions but the complainant had failed to appear before the learned Magistrate for adducing evidence. There was no representation on behalf of the complainant for adjournment on the date of the order under appeal. The Court considered the conduct of the complainant on repeated occasions on which the accused persons were present but the complainant was absent and also considered the fact that in spite of giving sufficient time/opportunity to the complainant to appear and adduce evidence, he failed to appear before the Trial Court and also did not produce any witness thus delaying the trial. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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